Constitutional Law Keyed to Brest
National Labor Relations Board v. Noel Canning
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The NLRB has five members. Under the Appointments Clause, the President appoints the members with the consent of the Senate. The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate,” art. II, § 2, cl. 3. On December 17, 2011, Congress had passed a resolution providing for a series of brief recesses through January 20, 2012. The resolution also called for pro forma sessions where no business would be transacted throughout this series of recesses. President Obama appointed three members to the NLRB on January 4, 2012 during a three-day pro forma session. Following this appointment, the Board found that Defendant, a Pepsi-Cola distributor, had violated the National Labor Relations Act by refusing to execute a collective-bargaining agreement with a labor union. Defendant challenged the Board’s orders, arguing that the orders were void because the three new members had been invalidly appointed and the Board therefore lacked the quorum required to conduct business and issue orders. Defendant claimed that the term “recess” in the Recess Appointments Clause did not include intra-session recesses that occur during a formal session of Congress, but only inter-session recesses that occur between formal sessions of Congress. The second session of the 112th Congress began on January 3, 2012, the day before the appointments were made. Defendant also claimed that the phrase “vacancies that may happen during the recess” only applies to positions that become vacant during that recess. The vacancies filled with the appointment at question here came open before the beginning of the recess during which they were appointed. Finally, Defendant argued that the Senate is not in recess when a pro forma session is ongoing. The Board claimed that pro forma sessions are a sham and would not prevent exercise of the recess appointment power because no business was conducted. The U.S. Supreme Court granted certiorari. [The remainder of the procedural posture is not included in the casebook excerpt.]
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